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Archive for November, 2009

If you haven’t seen the November issue of The Jury Expert, you are missing out! The Jury Expert is published by the American Society of Trial Consultants and edited by Rita Handrich of Keene Trial Consulting.

The Jury Expert (TJE) is a trial skills journal–meant to improve your litigation advocacy while educating and informing you about new research, new tactics and strategies, or new ways of thinking. We think the content in The Jury Expert is novel, relevant, practical, and often challenging or thought-provoking. It’s a different perspective on improving litigation advocacy based on years of experience in witness preparation, pre-trial research, case theming, persuasion strategies and life in general.

Every issue contains an article or two from academic researchers who translate their work into plain English. These articles are commented on by ASTC-member trial consultants who further translate the work into how they would use (or not use) the research findings in the courtroom. This issue, the articles from academics cover Sex & Race in the Courtroom (how it’s changed over time) and an introductory primer (in the form of an annotated bibliography) to the specialty area of Not Guilty by Reason of Insanity (NGRI) and Guilty But Mentally Ill (GBMI). Trial consultant responses add value and relevance to these pieces.

The remainder of the articles in November’s TJE are written by trial consultants. This is your chance to hear how different trial consultants think and practice. A chance to hear how we do what we do (and why) on a variety of litigation-related topics. Visit The Jury Expertwebsite to see the November 2009 issue with pieces on:

Googling Jurors: Understanding what is happening and how to minimize the intrusion of the internet in your case (This piece is from Keene Trial Consulting and is conveniently hyperlinked to serve as a reference for you and to give you the best ideas about how to mitigate internet intrusion in your case.)

Because we are fortunate enough to see many different attorneys at work in the courtroom, we are also privy to the common mistakes that undermine your credibility with the jury and that ultimately end up with your shooting yourself in the foot rather than hitting the target.

Thus, rather than just being positively focused and telling you to do this and that—we’re also going to tell you what not to do (again).

1. Don’t argue your case during voir dire.

This is perhaps the most seductive error. You are standing there in front of your pool and it is so tempting—but you must resist. They may ask you to tell them everything. And you urgently want to… but your goal is not to convince but rather to identify those who will mean death to your case. Resist the temptation.

2. Don’t use a hard sell.

Don’t lecture the panel. And don’t lecture the jury. Don’t berate or belittle. Be reasonable. Be clear. Breathe. Allow the jury to come along with you on the journey of discovery that is your case facts.

3. Don’t confuse argument with persuasion.

It really isn’t the same thing. And it doesn’t work. Argument closes the listener down because you are singing that same old song. Your goal is to communicate, to motivate, to clarify, and to inform.

4. Don’t fake emotion and, please, do not lead with emotion and tears.

You approach the jury. Your eyes twinkle with tears. Your voice is low and unsteady. You clear your throat and announce how privileged you are to represent this worthy plaintiff and you choke back a small sob. Someone on the jury giggles. They exchange glances. Uh-oh— you don’t want this. The jury doesn’t know you. You have no credibility with them. They don’t care about you or your client at this point. Allow their caring to build over time given information about a wrong that was done.

Be professional, be patient, be credible, tell your client’s story. You have to trust your case if you expect anyone else to. Allow it to unfold without haste or frustration.

“Sandra, a fifth-grade teacher, has just completed a science unit on molecules, and her class has done well on the unit test she just handed back. After going over the test, the class heads to recess. Sandra overhears one student who received a high test score asking another, “Do you really believe that stuff about molecules?” The other replies, “No way!” Sandra has never heard such an exchange in 10 years of teaching. She wonders if it is rare for students to disbelieve ideas they have encountered in class or if this occurs regularly and she has just never noticed.” (Chinn and Samarapungavan 2001)

In truth, it happens frequently according to researchers. And not just for controversial topics such as creationism, global warming, or various religious doctrines. We generally fail to distinguish between knowledge (i.e., “I heard it”) and belief (i.e., “I think it’s true”) when we are discussing even widely accepted topics such as historical events, or as above, the structure of the cell.

The distinction is critically important. Just because a teacher/expert may understand and believe these ideas, the student/listener does not and this has important consequences for how information must be presented in order to be not only heard, but also believed.

With adult listeners, such as jurors, for example—evidence strongly suggests that pre-existing attitudes/biases strongly influence beliefs about outcomes. Rather than being open to new conclusions or outcomes, we tend to listen to and retain those facts which support our pre-existing attitudes. This happens most strongly with those attitudes of which we are consciously aware (Fazio, Ledbetter et al. 2000). This is good news for litigators.

The question for jurors is not whether they are “willing to consider evidence about X”, but instead, whether the underlying assumptions about X are things that they are not inclined to accept. By identifying the attitudes and values which will be most negative for your case, you can use that information to your advantage in voir dire. Striking those jurors who will be consciously predisposed to “hear but not believe” will leave you with a panel more likely open to the potential to consider alternate perspectives upon review of the evidence.

“Everybody lies”—or so says the protagonist on Fox TV’s popular medical drama, “House”. Gregory House is Vicodin-addicted, self-centered, and a brilliant diagnostician—and he does indeed discover—that most of his patients lie about something which makes his task of discerning the real from the deception just a bit more difficult.

So it is in voir dire. But why? The questions that are being asked don’t often seem that personally important and when they are truly of an intimate nature (as with sex abuse history), they are typically asked outside the hearing of other jurors. So why would jurors lie about more routine things? Researchers have proposed multiple explanations.

Jurors are intimidated (afraid of what others may think or of embarrassed about expressing their opinions).

Jurors want to look good and thus give responses they think are socially positive.

Jurors want to protect their self-image and self-esteem in front of all the courtroom observers and other prospective jurors.

While there are likely other reasons jurors lie, there is certainly agreement that jurors do lie (Keene and Handrich 2005). So, if you know it’s likely to happen—what can you do to minimize it?

Believe it or not, there is one simple answer: Use a supplemental juror questionnaire (SJQ). When given privacy (and a thoughtfully-written questionnaire), jurors are more likely to engage in voir ecrire (“to write the truth”). Factors such as social discomfort, a desire to please, or an attraction to a fellow juror or jurors—can derail your voir dire before you know it.

Get it in writing—and then increase their comfort by reframing bias in a positive light.

There are only two ways of telling the complete truth–anonymously and posthumously.–Thomas Sowell (1930 – )

I had the pleasure of seeing a wonderful comedian and storyteller—Mike Birbiglia—live in New York last year in a one-man show called “Sleepwalk With Me”, and again on a Comedy Central special several months ago. The special, called “What I Should Have Said was Nothing” includes a socially painful but funny autobiographical story, to which the audience audibly moans in anticipation of what they could see was about to happen.

Mike (a really likable and sweet actor, and hopefully as nice a person as he is on stage), responds to the audience’s moan by saying “I know! I’m in the future, too!” The irony of his reporting to the audience that he felt what the audience was feeling was both endearing and a joining experience. We all loved him, even though we could see what a bad turn the story was about to take. His candor was as charming as his story was hilarious.

It brought to mind the truism that we don’t have to be perfect, we have to be honest. Acknowledging errors, or focusing on the good intentions that resulted in our unintended gaffe, can be mitigating, if not the basis for forgiveness.

We have seen this in prominent public figures (insert your favorite infidelity headline here), who don’t get publicly hammered for the misconduct but for their clumsy and defensive management of inescapable truths (see the papers on our website on Apology and on Eliot Spitzer). If a party hurts someone and hesitates to admit it, if they don’t share the moral reaction of the jury, they will be punished as an unrepentant reprobate.